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Tuesday, May 21, 2013

Trans-Pacific Partnership and America's Right to Know

This is not legal advice. Leave audio feedback at (512) 686-6329.

Ah, SOPA. It's back. At least for this post. If you want to hear my thoughts on SOPA when it was fresh, you can listen at Cyberunions.org. Unfortunately, the Trans-Pacific Partnership is still going strong and it has the possibility to be the new SOPA. We don't know if it will be the new SOPA, but we don't know that it won't.

Below is a full paper I turned in on the TPP.

Secrecy in the United States goes back to the founding. One of rules of the Constitutional Convention was that participants were not allowed to speak about the proceedings. James Madison would not even allow people to view his notes until after his death in 1836. Additionally, both the Federalist1and Anti-Federalist2Papers were written pseudonymously by ghosts of ancient Rome. Considering the pedestal on which we normally place the founders, why are people so upset about secrecy in the Trans-Pacific Partnership (TPP3)?

The reasons for the backlash against the TPP may well be voluminous, but this paper focuses on three points. First, the public has seen the outcome of treaties shrouded in darkness. Second, the public is impatient. Third, trade agreements are not matters in which the public recognizes a need for secrecy, such as they might in national security.

I. Past Performance of International IP Treaties

There are three aspects of past performance that come into play with TPP. There is A) the long-term past (essentially, colonialism), B) the medium term past (essentially, TRIPS) and C) the near term past (essentially, ACTA4, SOPA5and PIPA6). Due to the lack of historical perspective on ACTA, SOPA and PIPA, the paper will not address them.

A. Colonialism

International treaty negotiations always take place under the specter of colonialism. In fact, just about everything that is international in nature bears the marks of colonialism.7Thus, in some respects, it is unremarkable that it looms in intellectual property (IP) debates. However, IP is a distinctly western idea8, and thus colonialism is of particular importance for understanding the IP debates. The details of how colonialism affects international IP are the subject of many books9and papers10. Here, the details are unimportant. However, as TPP information leaks out of the inner circle of negotiators, they may become more important. For now, it is enough to understand that there is a base level of skepticism built into the system due to the history of colonialism.

Realizing that colonialism cannot be forgotten, one must look at the most recent major global11treaty on IP. TRIPS is important in this context because for the first time IP was tied to international trade. This conjures the mercantilist roots of colonialism, but TRIPS is not important to the transparency story because it fits into the colonialism narrative. Rather, TRIPS is an example of caveat emptor12. Unfortunately, initial ignorance of TRIPS on the part of developing nations13has lead to instability in the long term health of the treaty. This has in turn lead to nations turning to WIPO14(World Intellectual Property Organization) and increasing expansion of exceptions in TRIPS15. While there is nothing inherently wrong with turning to WIPO or aggressively interpreting a document in self-interest, if developing nations had gotten what they thought they were getting out of TRIPS, then perhaps policy makers in those countries could be spending resources on more important issues, such as clean drinking water and education.

If the developing nations are the ones that got duped or misunderstood TRIPS, why then are so many involved with TPP? There are many reasons for this, including the same psychology that allows losing gamblers to keep on losing, but the primary reason is simply that since this is a regional negotiation rather than a global negotiation, the smaller players do not feel like they are getting left out in the cold.

The question for western non-governmental organizations (NGOs) is mostly whether the TPP is good for developed nations, but likewise, there is the paternalistic question of whether the TPP is good for the developing nations. Whether US-based interest groups critical of the TPP such as the Electronic Frontier Foundation (EFF) have or should have in mind the best interests of developing nations is a matter only marginally relevant to understanding their response. The fact remains that those that ignore history are doomed to repeat it. In this case, history suggests that the interests of those who do not have a voice in the negotiations will not like the results.

II. Societal Impatience

It is important to remember that the guiding question of the paper is “Why are people so angry about the lack of transparency in TPP negotiations, despite the long history of secrecy in the United States government?” One of the answers seems pretty clearly to be impatience on the part of the public. There can be little doubt that if the Constitutional Convention were to happen today, the public would expect talking heads on both sides to be remonstrating about it 24/7. The public would not expect Rush Limbaugh to have a seat at the table, but they would not expect Rush to say “I don’t know what to tell you folks, because everything is so secretive.”

Some of the reasons for this are obvious. The Internet and cable news have made information overload generally more of a problem than inability to get information.16Another likely reason is the increased campaign season for elected officials. Literally as soon as Obama won the 2012 election, the media was speculating on the 2016 candidates.17 The last of the obvious reasons, and connected to the other two reasons mentioned supra, is that there is cultural attention deficit-hyperactivity disorder.18Again, policy-makers should not simply comply with fast-food culture, as it is a problem worth addressing in its own right, but it is a phenomenon tied to the discourse on the TPP.

III. Public Recognition of Secrecy

The value of secrecy versus transparency in certain contexts could certainly fill volumes of books.19Certainly vast swaths of the public would agree that some secrecy is necessary as it relates to national security. The question becomes, where to draw the line? Unfortunately, the TPP negotiators have put us in a situation where we do not need to critically assess where the line should be drawn. Under no reasonable conception of transparency have the TPP negotiations been transparent. While reasonable minds can differ about how open the TPP negotiations should be, under no reasonable conception should the TPP have been conducted the way it has been thus far.

While a true understanding of public opinion would require surveys, given the rhetoric surrounding the TPP, certain themes can be assumed. It is these broad themes which are addressed in this third part. Specifically, and first, the third section addresses secrecy as it relates not precisely to the public, but to Congress. Second, the third section addresses the value secrecy in foreign relations and how that relates to the short term and the long term.

A. The Executive Keeping Secrets from Congress

Much Executive and Congressional time is spent wrangling for power amongst the two branches. As frustrating and cowardly as much of the bickering may seem, this was in essence the intent of the founders. The Framers were aware of the glory that ambition brought to ancient Rome, but also that that same ambition was ultimately the fall of the ancient Republic. Unlike the TPP negotiators, the Framers were determined not to repeat the mistakes of history.

While the intent of the Framers may win a Constitutional argument in a courtroom, the public debate about the TPP is not happening in a courtroom. This is not to say that the Framers do not hold sway with the American public. They do. But, much as the Framers came from differing backgrounds and perspective to win the American Revolution and write and ratify the Constitution and Bill of Rights, the American public would like to see the Executive and Legislative branches pull together when times are tough, but not in some fascist flag-waving way. When someone from the right or the left makes a stand that seems genuine, people may be frustrated, but people can still respect the point of view. What enrages both the right and the left is when the bickering is done not from principled positions but due to political maneuvering or special interests, both of which are on full display in TPP negotiations.

Ultimately, in the court of public opinion, Obama needs a rational, genuine argument for keeping information from the people, not just some sort of elusive “executive power.” If he has one, he has not articulated it. The best arguments the Obama administration has is a broad interpretation of Article II, Section 3, Clause 4 of the US Constitution which states “[the president] shall receive ambassadors and other public ministers” or broad structural arguments such as those adopted in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) which together sound alot like “I’m the decider.”

However, Curtiss-Wright dealt with an armed conflict, while the TPP does not deal with what might arguably be the war powers. The TPP is a trade agreement, which should fall under the purview of foreign commerce power of the US Congress even if the Trade Act is renewed. Further, even in the national security realm, Senators are briefed on important news. However, Senators were denied access to the TPP negotiations despite their Constitutional power to regulate foreign commerce. To turn the absurd into farce, Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America were all made privy to the details of the negotiations. This sort of corporate access is almost as classic as Amazon censoring 1984 and immediately raises calls of fascism from the left and “new world order” conspiracies from the right.

B. Long-term Foreign Relations versus Short-term Foreign Relations

When it comes to foreign relations, many in the public would agree that some level of secrecy might be necessary. In fact, in this context, they might even use the word “privacy.” Why should the U.S. air the dirty laundry of other countries? It should not, the argument goes.

However, this is not a time for international “privacy,” and the public knows that. Eventually, at the very least when the TPP is set to become law, the public will find out the text of the TPP. What if there is significant citizen outrage like with the SOPA/PIPA situation (or ACTA in Europe)? In that situation, we may have to back out of the treaty. This will set back US-Asian relations as well as relations with our neighbors both to the north and the south, since both Canada and Mexico are TPP parties.

There will presumably always be issues of one form or another with our neighbors to the north and south: migratory birds, the great lakes, whales, etc. However, right now is a particularly bad time to sour relations with Mexico. People are being murdered at the US-Mexican border due to drug violence.20The US government needs all the help it can get in solving this problem. Now is not the time to damage that relationship due to an FTA that we do not need21post-NAFTA.22Further, the public wants answers to the Mexico problems now, not later. If Obama does think that the TPP can be part of fixing our border issue, then the administration needs to come out and say it. Secrecy about any trade negotiations with Mexico are not likely to come with much deference from the public. This, of course, brings us full circle to looking at history. While there is not time here to go into the history of NAFTA, the public reception to TPP can, in large part, but summarized as “once bitten, twice shy.”

IV. Conclusion

As we have seen, there are many reasons23why trade, IP and transparency activists are concerned about the lack of transparency in the TPP negotiations. However, there may be change blowing in the wind.24The TPP has already begun a campaign of Direct Stakeholder Engagement.25Additionally, Ron Kirk leaving as US Trade Representative26could begin a more positive chapter in TPP negotiations, though Obama’s praise of Kirk may suggest that is more dream than reality.27While leaks are not really transparency, as more countries join the TPP, there is more surface area for leaks. For trade and IP advocates (rather than advocates for transparency), the effect is essentially the same, unless there is a significant delay to the leak.

Ultimately though, the airing grievances as is done in the Direct Stakeholder Engagement28is not going to solve the problem. People want to see the current text. No one is going to believe that the TPP is not bad unless it can be verified. While verification will not get rid of the history of colonialism, societal impatience, political posturing or concerns about the long-term effects of globalization, what it can do is help people understand what the real issues are. Once civil society can pinpoint the real issues, then perhaps the airing of grievances in the Direct Stakeholder Engagement sessions could actually lead to change. Of course, right now, we do not even know if we want to change anything.

BIBLIOGRAPHY

1. Enforcement, Enforcement, What Enforcement?, in IDEA: The Intellectual Property Law Review.

8 Which brings into question the need for IP. The ancient Chinese and medieval Islamic world seemed to do just fine without IP. This should not be viewed as a Europhobic comment. Certainly China and the Islamic world have their own set of issues.

11 While “major” and “global” are both arguable words, and it remains to be seen if TRIPS will stand the test of time like Berne and Paris, this simply means a treaty to which most of the world is an observer. While some of the “global” nature of Berne and Paris is due to TRIPS and the WTO, whether TRIPS is the most recent global treaty on IP is not central the argument. It is simply the milestone used here. Other treaties, such as the Council of Europe’s Convention on Cybercrime, are more recent, but do not have the global scale of TRIPS.